Legislating Love Online: Should States Mandate That Online Dating Sites Do Criminal Background Checks of their Users?

Social networking sites, online dating services, and even matchmaking sites have been around for some time now, but recently, they've become more and more popular. Accordingly, states are growing increasingly wary about the risks of Internet dating - and are proposing laws to protect users from criminals or predators who may harm them.

Are these laws a good idea? I'll evaluate the laws that exist, and that are being considered, and ask if self-regulation by websites might be an acceptable alternative.

There's No Federal Regulation of Internet Dating, Only of Internet Marriage Brokers

So far, the federal government hasn't gotten into the business of regulating online dating. But it does regulate international marriage brokers, online and off. (There are reportedly over 200 such agencies operating in the U.S.; each year, approximately several thousand American men meet their spouses via these agencies.)

Evidence suggest that some of the wives become victims of domestic violence, but may remain in their marriage, because they remain unaware of immigration laws.In response to these concerns,in 2005, Congress passed a law - effective as of March of this year - requiring international marriage brokers to obtain criminal and other background information from all of their members, and disclose the information on their site (including to non-U.S. clients), translated into appropriate native languages.

This law is a good idea. But it is one thing to move across the globe and get married after meeting on the Internet - and entirely another to simply meet online and then to have a date. Congress has been right to stay out of the area of online dating so far - and the states may want to follow suit.

State Internet Dating Laws: Three Approaches

To date, New York is the only state that has a law specifically regulating online dating sites. But rather than attempting to ensure user safety, New York law targets fraud, regulating the quality and number of referrals the sites provide for a fee.

Recently - and mainly, over just the last year -- six other states have introduced legislation relating to online dating. They are California, Florida, Michigan, Ohio, Virginia and Texas.

Some states simply want to mandate warnings stating that no background checks on potential suitors have been conducted. These warnings, in themselves, are a good idea - preventing any false sense of security on the part of users. Sites can, of course, also adopt them voluntarily, and might be well-advised to do so, to protect themselves from liability.

Other states may require that checks be conducted, or that a warning be posted if checks are not conducted. It is unclear whether someone with a conviction would be identified to other members of an online dating site. Will sites that conduct checks be required to report users' felony convictions to others or to ban convicts from their sites?

Will Criminal Background Checks Work? And Are They a Good Idea?

Unfortunately, even with a criminal record check, no dating site can confidently give a user its seal of approval. Criminal records vary from state to state, and from record to record, in their thoroughness, accuracy, and completeness. Name changes, marriages, and aliases may mean that someone who is a genuine felon appears to have no record.

For these reasons, if a site represents that a user has no criminal convictions, it may give users a false sense of security. And if it represents that a user does have criminal convictions, it may be wrong.

Either way, there's legal risk for the website. A user falsely branded a felon could sue for libel. (Communications Decency Act protections against libel liability don't apply to the author of a posting, only to its host; if the site authored "felon" notices, it could still be liable.) Conversely, a user who relied on an "all clear" result from the site, but then was assaulted or raped, could sue the site for a variety of torts including misrepresentation.

And even if criminal background checks are accurate, their results may still be unfortunate. If a forty-year-old, say, stole a car when he was twenty, he might understandably prefer to explain the circumstances in person, rather than suffering a blaring warning on a website labeling him a felon.

All these factors indicate that the criminal background check laws may not be as promising as they might seem, as a matter of policy. They may also be ineffective in that they simply re-route users to more traditional real-world places to meet such as bars or coffeehouses, or to newspaper personal ads.

Sometime we forget that the Internet, while risky, is not uniquely risky. There's no substitute for a simple yet invaluable dating rule: Meet a potential date in public places, until you are absolutely sure you feel comfortable being alone with him or her privately. A stranger is still a stranger, wherever you meet him or her.

One Problem With the Law: A Legally-Required Forfeiture of Anonymity Rights

Such laws not only may be bad policy, but may also compromise users' First Amendment right to speak anonymously. If users won't give their names, then no criminal background check can be done - so requiring a check, also requires a compromise of anonymity.

People may have good and bad reasons for seeking anonymity. They may be gay and seeking to date same-sex partners without coworkers' knowing, because they fear discrimination at work. Or they may be married, and seeking to secretly cheat on their spouses, without facing the consequences.

Whether their motivation is good or bad, however, the key is that they also have a right not to be legally required to give their anonymity up. As the Supreme Court held in 1995 in McIntyre v. Ohio Elections Commission, "[protections] for anonymous speech are vital to democratic discourse." Among the value of such protections is "to protect unpopular individuals from retaliation…at the hand of an intolerant society."

The Advantages of Self-Regulation

There are many perils present in transacting via the Internet - yet we do not require background checks for most of these transactions. That does not necessarily mean, however, that they are unsafe. There are other ways to ensure safety besides criminal background checks.

EBay users, for example, could be con artists or swindlers - yet eBay does not require a criminal background check. Instead, it relies largely on user feedback to police its marketplace. (No one will transact will an eBay seller with poor feedback, and many successful sellers have feedback that is over 99% positive.) In addition, eBay offers a program whereby sellers or buyers can have their IDs verified, to build additional trust in their user profiles. But this is purely voluntary. Many eBay users do not opt for this service.

Obviously, these specific ways of guarding users won't work on a dating site. But some dating sites have used reputation in creative ways - either negatively, as with Dontdatehimgirl.com, or positively, as with sites where users get recommendations from exes with whom they are still friends.

Moreover, users could voluntarily agree to background checks, rather than having them legally required. True.com, which was founded in Texas, reports that it has 3 million active members who have agreed to have criminal background checks done on themselves and their potential dates. Another company, safedate, offers to screen clients. People who go through the safedate process are able to add a recognizable icon to their profile on whatever dating site they are using.

In the end, companies cannot ensure that the people we meet online will be Mr. or Ms. Right - only we can do that. It's better, for now, to let companies respond to consumer demand when it comes to both safety and privacy, than to sacrifice privacy for a safety that may turn out to be illusory anyway.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, and other legal issues for this site, which contains an archive of her columns.